Opinions of the Judicial Ethics
Advisory Committee



Practice of Law



Canons
Fla. Code Jud. Conduct, Canon 5A A judge shall conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties.
Fla. Code Jud. Conduct, Canon 5E A judge shall not serve as executor, administrator, or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family; and then only if the service will not interfere with the proper performance of judicial duties.
Fla. Code Jud. Conduct, Canon 5G A judge shall not practice law; but a judge may act pro se and may, without compensation, give legal advice to and draft or review legal documents for a member of the judge’s family.
Opinions
Matters Prior to Becoming a Judge
JEAC Opinion Number
Subject
Judge who referred a personal injury case to a law firm prior to taking the bench may accept referral fee from law firm after taking the bench, but may only do so on a quantum meruit basis because the Rules Regulating the Florida Bar require lawyers receiving a referral fee to either receive a fee proportionate to their participation in the case, or a set percentage if the lawyer is available to consult with the client and accepts joint legal responsibility for the representation, none of which a judge can do under the Canons.  The judge is disqualified from presiding over matters in which the law firm appears as counsel because the Canons prohibit judges from engaging in financial and business dealings with lawyers who come before the judge.  5A, 5D(1)(b), 5E, 5G.
A judge-appointee, after being notified of appointment by the governor but before taking office as a judge, may continue to serve in the legislature, subject to restrictions articulated in JEAC Op. 2014-05 7

Judge may write a letter to a former client informing the client that the judge no longer can practice law, and may furnish the former client a copy of a document in the judge’s possession which the former client might find helpful in obtaining advice from new counsel. 5A(3), 5A(4), 5E, 5G.

Judge may collect a contingent fee for a matter on which the judge worked, and for which the judge secured an offer of settlement, before becoming a judge. No canons cited.

Lawyer who has been appointed as a judge, but has not assumed office, may sell the lawyer’s interest in a law practice, including its tangible assets and goodwill, and collect payments for that sale over a period of time while sitting as a judge. But payments for goodwill may not be based on a formula taking into account fees earned in pending matters transferred to the acquiring firm, because that would involve the judge in the future success or failure of the continuing law practice. 5C and 5G.

Recently appointed judge may receive a fee for legal work performed prior to taking office.  5G.

Judge and judge’s former law partner may maintain a partnership account after the judge assumes office as long as the account is solely for the purposes of winding up partnership business; the partnership is formally dissolved; the account is closed within a reasonable time; and the judge and the partner perform no professional services after the judge assumes office.  5D; 5D(3); and 5G.

Judge who formerly prosecuted a murder case as an assistant state attorney may discuss the defendant’s motion to vacate with the current assistant state attorney so long as the judge scrupulously avoids advising or assisting in the conduct of the litigation and limits his or her discussion to factual matters.  5G

Judge may not be interviewed by lawyers or their clients regarding the decision of an arbitration panel on which the judge served prior to becoming a judge because judge would be continuing to act as an arbitrator, in direct violation of Canon 5F.  Further, such participation would lend the prestige of judicial office to the proceeding.  2B, 5F.

Judge may maintain certification as a Circuit Court Mediator provided that judge does not actually serve as a mediator except for training purposes.  5F.

Child support hearing officer may continue to represent indigent prisoners who have filed post-conviction relief motions in the circuit in which the officer presides because neither the State Attorney’s nor the Attorney General’s Office—the officer’s adversaries in criminal proceedings—are involved in child support enforcement in the relevant circuit.  No canons cited.
Newly appointed judge may not sign a title insurance policy after taking bench even though effective date of policy is before the judge assumed the bench because signing the policy constitutes the practice of law. However, the judge may receive payment for any work done on the title insurance policy prior to assuming the bench. 5G.
Newly appointed judge may change status of professional association under which judge practiced law to another legal entity in order to continue owning a building that housed the judge’s law practice. 5D(2).
Even though professional association under which newly appointed judge practiced law may need to generate future tax documents or other legal filings in the future, judge must change status of professional association or dissolve it prior to assuming the bench. Also, while the operating account of the former professional association may remain open after the judge takes the bench to accept payments for work done prior to the judge’s assuming the bench, the account should reflect the association’s new status. 5.
A newly-appointed judge may not discuss the pending cases of former clients with the clients’ new attorneys, even if such attorneys are former law partners of the judge, except as to matters that would not constitute the practice of law. 5A, 5E, and 5G.
New judge could not keep trust account open for disbursement of funds he was still receiving in connection with private practice matters because doing so would involve representing clients and retaining his business name, both violations of Canon 5(G)’s prohibition against the practice of law by judges. 5(G) and 5(E)(1).
Part-time child support hearing officer may practice law in same circuit and same county in which he or she presides subject to the limitations set forth in Op. 2002-03. No Canons cited.
Child support hearing officer sitting in limited basis in one county of a four-county circuit may continue to handle civil litigation matters in the circuit provided he or she follows the limitations set forth in Op. 2002-03. No Canons cited.
Pro bono part-time family law hearing officers may continue to practice law in the same circuit in which they serve as hearing officers, provided that they do not handle any family law cases or other matters that so overlap with family law as give rise to conflicts of interest with regularity. No Canons cited.
No provision in Code prevents a newly-elected judge from handling cases in the local trial courts prior to the time the judge-elect takes the bench. No Canons cited.
Part-time traffic magistrate who presides over traffic court in one county may not represent clients charged with traffic-related felonies in either the county in which the magistrate presides or the adjoining county in the same circuit, even though those felonies are filed in circuit court. Canon Application A(2).
Part-time juvenile dependency officers assigned to one or more counties within a circuit may not represent criminal defendants or litigants in family law cases not involving dependency in any county or circuit court of that circuit. 2 and 3.
Part-time traffic magistrates may continue to handle cases other than traffic matters and appeals of traffic matters, even in the circuit in which they preside. No Canons cited.
Part-time child support hearing officers may not handle matters involving probate, guardianship or mental health in the circuit in which they preside. Also, any associate in the hearing officers’ law firms would likewise be prohibited from such practice. 3A and Application.
Guardianships
Judge may not serve as a trustee or executor for a long-term friend even where the friend is an out-of-state resident, the trust and estate will be outside of Florida, and it is highly unlikely that any legal proceedings would occur in Florida.  5E(1).
Judge may not serve as a guardian of the person for a child who is not a family member. 5E(1).
Work on Behalf of Family

A senior judge may serve as the officer of the professional association (the “P.A.”) of the judge’s deceased spouse’s solo law practice in order to file a corporate report as part of the process of closing the practice.  5D(3), 5G, Definitions.

Senior Judge, who was appointed personal representative of late spouse’s estate, may close down deceased spouse’s solo practice, hire staff to bill accounts receivable, become a signor on the firm’s operating and trust accounts, hire an attorney, if necessary (to address any legal issues that may arise in administering the estate and closing down the practice), and purchase tail insurance for the Professional Association.  5E, Rule 1-3.8, Rules Reg. Fla. Bar.
A judge may appear as a guardian of the judge’s minor children in a mediation in a probated estate because a judge who is a parent of a minor child is authorized to act on behalf of that child in probate proceedings. The judge should clarify at the mediation that the judge’s appearance at the mediation is as guardian and not as attorney, advocate, or negotiator for the children. 5E and 5G.
Judge may serve as trustee of a trust created by the judge’s grandfather for the benefit of the judge’s uncle.  Preamble; 5E(1) and (2).
Retired judge not subject to recall for judicial service is entitled to practice law to the same extent as any other attorney provided judge is a member in good standing of The Florida Bar. This practice may include representing himself or herself and his or her spouse in a trial or appeal. 5G and Fla. R. Jud. Admin. 2.030.
First cousin of judge’s spouse is not a "member of the family” such that judge could prepare probate documents and advise the cousin, who was serving as a personal representative of the estate of the spouse’s aunt. 5(A)(3) and 5(G).
Judge’s ex-wife, former father-in-law, and former father-in-law’s spouse do not qualify as “family” under the Code of Judicial Conduct; consequently, the judge could not serve as a trustee for a trust set up for the benefit of the former father-in-law’s spouse, even though the remainder might one day pass to the judge’s children. 5E(1)
Judge may serve as trustee of property devised to judge and his or her spouse as a life estate because the property is being held in trust for the benefit of the judge and a “member of the family” as defined in the Code. 5E(1).
Mediation and Arbitration
Canon 5F(2) of the Code of Judicial Conduct applies to service as a senior judge on a District Court of Appeal. Thus, a senior judge is prohibited from serving on any case, including an appellate case pending in a District Court of Appeal, which originated in the judicial circuit where the senior judge currently provides arbitration services, but a senior judge is not precluded from serving as a senior judge on any case before the District Court of Appeal that arises outside of the circuit where the inquiring judge presides as an arbitrator. 5F(2), Application, Application B(1).
Senior judge may serve as a court-appointed, litigant-paid independent investigator regarding a shareholders’ derivative suit pursuant to section 607.07401 Florida Statutes (2016), but only in circuits where judge is not currently presiding. Dual-service, same- circuit prohibitions apply regarding this quasi-judicial role. The senior judge would be required to disclose such service in certain cases in which senior judge is presiding.  5F(2).
Senior Judge may not work part time as an insurance umpire. 5D(3),5F(2),5G, Application.
Senior judge may not serve as a litigant-paid special magistrate in any case in a circuit in which the judge is currently presiding as a senior judge. See Fla. Code Jud Conduct, Canon 2; Fla. Code Jud Conduct, Canon 5F(2).
Canon 5F(2) would not bar the inquiring judge from mediating cases arising from appeals outside of the state judicial circuit in which the senior judge presides as long as restrictions regarding geography and subject matter are not implicated; certification requirements are met; and doing so would not result in an appearance of or the potential for impropriety. 3(E)(1)(a), 5F(2); Commentary to Canons E(1), 5F(2); Application Section.
A senior judge may not mediate cases arising out of appeals from the circuit in which the senior judge presides.  5F(2) and Application Section.
Effective October 1, 2014, no senior judge may serve as a mediator in any case pending in any court, state or federal, in the circuit in which the senior judge presides.  5F(2).
Retired judge eligible to serve on judicial duty may not mentor a law firm’s associates in effective trial practice or help a law firm develop state-wide and multi-state ADR programs. 5F(2).
2011-11
Overruled by In Re: Amendments to the Code of Judicial Conduct, 141 So.3d 1172 (Fla. 2014).
A senior judge who has contracted with a mediation group to provide mediation services may permit the mediation group to display the judge’s image and professional biography on its website because according to Canon 5F, senior judges may “be associated with entities that are solely engaged in offering mediation or other alternative dispute resolution services but that are not otherwise engaged in the practice of law.” The website may not use the title “judge”, disclose the judge’s senior judge status, or use a photograph of the senior judge in a judicial robe because it would lend the prestige of judicial office to advance the private interests of the mediation group. Further, the senior judge may not advertise, solicit business, or participate in any other activity that would promote his or her mediation services. 5F(2).
A retiring judge may not permit the mediation firm that the judge is joining to send out an announcement that the judge is joining the firm while the judge is still a sitting judge because it would lend the prestige of judicial office to advance the private interests of the mediation firm and give the impression that the firm and its mediators who are lawyers are in a special position to influence the Judge.
A senior judge may not preside over the trial of a civil case when the senior judge currently is providing mediation services in the same circuit in the same type of cases, even where the senior judge has not previously provided mediation services to the attorneys or parties involved in the trial, and the attorneys and parties on both sides of the case have requested that the senior judge preside over the trial.   1; 2; 3F; 4; 5; 5F(2); Commentary 5F(2); and former Commentary to the Application of the Code of Judicial Conduct, Section B.
Senior judge wishing to begin private mediation practice may not advertise services, even if such advertisements will be directed to non-lawyers only and will not state that the senior judge ever served as a judge.  Canon 5F(2) prohibits such advertising regardless of whether it is directed at attorneys or laypersons.  5F(2) and Commentary.

Judge may not be interviewed by lawyers or their clients regarding the decision of an arbitration panel on which the judge served prior to becoming a judge because judge would be continuing to act as an arbitrator, in direct violation of Canon 5F.  Further, such participation would lend the prestige of judicial office to the proceeding.  2B, 5F.

Judge may maintain certification as a Circuit Court Mediator provided that judge does not actually serve as a mediator except for training purposes.  5F.